Domesticating Doctrines: Aboriginal Peoples after the Royal Commission

• Main Author: Borrows, John
• Format: Article in Journal/Newspaper
• Language: English
• Published: McGill Law Journal 2001
• Subjects: Canada; Metis
• Online Access: http://hdl.handle.net/1828/7046; http://lawjournal.mcgill.ca/userfiles/other/4122068-46.3.Borrows.pdf

The 1996 Report of the Royal Commission on Aboriginal Peoples addressed the difficulties inherent in the domestication of Aboriginal and treaty rights in Canada. While Aboriginal peoples can now legitimately question the injustice of colonial encounters and lay claim to pre-existing rights within the nation states in which they live, it is also becoming increasingly clear that these states can extensively modify, infringe, or extinguish indigenous rights. The Report indicated that Aboriginal peoples require the choice and the ability to pursue objectives that differ from those of the Canadian state. Furthermore, Aboriginal peoples desire greater control over the development of their land and resources so that it conforms more to their values and objectives. This article questions whether the Commission's recommendations with respect to Aboriginal and treaty rights to land and resources have been effectively taken into consideration in subsequent legislative and jurisprudential developments. The author's analysis demonstrates that the recommendations and proposals with respect to treaties, treaty making, Aboriginal land base, Aboriginal title, the Canadian government's fiduciary obligation to Aboriginal peoples, and Metis rights to land and governance have yet to be sufficiently observed. While the Report has certainly influenced government policy, Aboriginal peoples are nevertheless denied the recognition of Aboriginal and treaty rights to lands and resources in the manner recommended by the Commission. Faculty Reviewed